1 - Conflict Avoidance, Management and Dispute Resolution Flashcards
Tell me about the RICS Dispute Resolution Service
- Oldest DRS in the world
- Well established
- Provides ADR in Land, Property and Construction
How do you avoid conflict?
- Clarity of Client Brief
- Understanding of requirements, risk allocation and contract provisions
- Follow the contract!
- Keep accurate records and write things down
- Remove emotion from the equation
- Professional practice in line with regulations and guidance, including from the RICS.
Can you name me the types of ADR?
- Mediation and Conciliation
- Adjudication
- Arbitration (although this can be seen as litigation)
- Senior Representative
- Expert Determination
Can you tell me the steps in the Adjudication process?
- Dispute needs to crystalize first then:
Day 0 - Party sends Notice of Adjudication
Day 0-7 - Party has to send Referral Notice
Day 0-7 - Adjudicator needs to be appointed
Day 7-14 or 21 - Other Party responds
Day 28 - Adjudicator issues decision
- Can be extended up to 42 days by agreement
- Adjudicator’s decision is binding
What is different about Arbitration compared to other ADR’s?
- In effect it’s private litigation
- Not really an ADR as it still costs money but does remain private
- Arbitration is absolutely binding - courts will enforce an Arbitration decision just as they would their own ruling.
What is contained within the Conflict Avoidance and Dispute Resolution Guidance Note?
- How best to avoid conflict
- Description of the types of ADR
- More detailed sections on how each of the processes work and things to consider in practice
- Explanation of where the various rights are enshrined
What are the Three Pillars of Dispute Resolution?
- Negotiation
- Mediation
- Adjudication
What is Mediation?
The parties agree on an independent, third-party neutral individual to facilitate discussions between them, with the goal of reaching a settlement. The power to settle remains with the parties, but the process is led by the mediator.
Advantages – quick (1 day), cheap (about £1k); Disadvantages – non-binding.
What is Adjudication?
Seen as a simplified arbitration process, it is a UK statutory dispute resolution procedure that is relatively quick from submission to referral. Provided by a third-party adjudicator selected by the parties to the dispute, normally named in the contract.
Binding until the dispute is determined by litigation or arbitration.
What is Arbitration?
A private process where an arbitrator is appointed, and parties are bound by the decision. The decision can only be overruled by the Court of Appeal and follows the Arbitration Act 1996.
